OPINION & ORDER Before the Court are the cross-motions for summary judgment of Plaintiffs G.S. and D.S. (collectively, “Plaintiffs” or the “Parents”), (Doc. 23), and of Defendant Pleasantville Union Free School District (“Defendant” or the “District”), (Doc. 31). For the following reasons, Plaintiffs’ motion is GRANTED IN PART and DENIED IN PART, and Defendants’ motion is GRANTED IN PART and DENIED IN PART. I. BACKGROUND The following facts are based on the parties’ Local Civil Rule 56.1 Statements, (Doc. 25 (“Ps’ 56.1″); Doc. 33 (“D’s 56.1″)), their responsive 56.1 Statements, (Doc. 26 (“Ps’. 56.1 Resp.”); Doc. 39 (“D’s 56.1 Resp.”), and the administrative record,1 and are undisputed unless otherwise noted.2 A. Facts 1. Kindergarten Through Tenth Grade Plaintiff’s daughter, S.S., was born in May 2000, (Ps’ 56.1 Resp. 1), and started attending public school in the District in kindergarten, (D’s 56.1 Resp. 1). The District designated S.S. as a “student with a disability” starting at that time, and in middle school through the tenth grade, the District provided S.S. with special education in its “Individual Support Program,” or “ISP.” (Ps’ 56.1 Resp. 2.) The ISP includes some special education classes, but students in the program are also in some classes with their same-aged peers. (See Impartial Hearing Officer (“IHO”) Decision at 3-4.) S.S. achieved “significant growth through the services of the District’s ISP program through her eighth grade,” and it is undisputed that the District provided appropriate special education services for S.S. through that year. (Ps’ 56.1 Resp. 3.) The parties dispute, however, whether S.S. was successful in her ninth-grade year. (Id. 4; D’s 56.1 Resp. 7.)3 At the administrative hearing before the IHO, D.S. testified that S.S. “didn’t receive the support that she really needed and she was overwhelmed by regents level classes” during ninth grade, and she showed “some regression” as evidenced by her homework grades and report cards. (Tr. at 1974:8-1975:6.) Defendant notes, however, that S.S.’s ninth grade teacher testified at the hearing that S.S. had “a really good year,” grew socially and academically, and “was successful in her classes.” (Id. at 1028:14-18.) Further, D.S. sent a note to S.S.’s teachers thanking them for “for a great year” in which S.S. “made some great strides.” (D’s Ex. 14 at 15.) It is undisputed that S.S. was chronically late during that year, (D’s 56.1 Resp. 8), which resulted in multiple detentions. (P’s Ex. D at 4 (email from Rosemary Browne, ISP Program Coordinator at Pleasantville High School, stating that S.S. had accumulated three detentions “[d]ue to her latenesses”).) In April 2015, the District’s Committee on Special Education (“CSE”) met to develop an individualized education program (“IEP”) for S.S.’s tenth-grade year. (D’s 56.1 Resp. 11.) The IEP placed S.S. in a Special Class: 12:1+3:1 for Health/Life Science Instruction; Special Class: 15:1 for Modified Social Studies, Modified English and Modified Science. Further, the IEP provided that S.S. would receive [Consultant Teacher ("CT")] Services Direct and Indirect: 1x Daily for 1 hour 20 minutes in Regular Class and 1x Daily for 40 minutes in Alternative Days in Regular Class. For math…the IEP placed her in a general education class with CT Services Direct: 1x Daily, 40 minutes in Math Class. Finally, the IEP offered a Special Class (ISP Study Skills) 12:1+3:1: 1x Daily for 40 minutes, Speech Language Therapy, 1x weekly for 30 minutes and minimal Family Training, 1x monthly for 1 hour in school. (Id. 12; see Ps’ Ex. E at 11.) Plaintiff testified that she did not think this IEP provided S.S. with the support she needed. (Tr. at 1987:8-17.) In some of S.S.’s classes, S.S. made “less than anticipated progress,” (Ps’ Ex. M at 2, 8), but in other classes she met or was expected to meet her goals, (id. at 4, 6 8-11, 13-14). S.S. passed her Living Environment Regents exam with a 68 that year, but failed the Regents exams in Global History and Algebra I by substantial amounts. (Ps’ Ex. K at 1.) Plaintiffs also believed the IEP’s provision of parent counseling and training was insufficient. (D’s 56.1 Resp. 22; Tr. at 2001:21-2002:8.) At some point, Plaintiffs made S.S.’s teachers aware “that the [Plaintiffs] had a long list of dissatisfactions with S.S.’s program of ISP special education.” (D’s 56.1 5 (citing Tr. at 1390-93).) The parties dispute when this was. Defendant asserts that Plaintiffs did not notify the District of their dissatisfaction until January 2016, during S.S.’s tenth-grade year. (See id.) At the hearing before the IHO, however, one of S.S.’s teachers testified that Plaintiffs had raised many concerns prior to January 2016, (see Tr. at 1390:20-1391:23), but January 2016 was the first time Plaintiffs had said to the teachers that the District’s program was not appropriate for S.S., (id. 1394:25-1395:11). 2. Gottesfeld Report During S.S.’s tenth-grade year, Plaintiffs asked Dr. David Gottesfeld to conduct a psycho-educational evaluation of S.S. (Ps’ 56.1 35; P’s Ex. I.) Gottesfeld concluded that S.S. suffered from Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, Generalized Anxiety Disorder, Specific Reading Disorder, Disorder of Expressive Writing, and Mathematics Disorder. (Ps. Ex. I at 21.) He concluded that S.S.’s “current academic program is not appropriate,” further stating: [S.S.] requires a residential school offering a small, structured 24/7 academic environment, interwoven therapeutic support and proven intensive remedial language based curriculum that not only presents topical material, but more importantly focuses intently on skill development and actively cultivating the independence and vocational aptitude that will be needed beyond high school. She needs 24/7 exposure to peers and an environment taught by special education teachers who are experienced and trained to teach teenagers with her profile. [She] needs to be in a community of peers on a similar developmental level to her own and in an academic setting where there is appropriate academic and vocational instruction for her cognitive needs and autism. Without these appropriate supports, [S.S.] is at risk of academic, social, and behavioral regression. (Id.) Gottesfeld recommended that Plaintiffs provide his report to the District and that any IEP should include his diagnosis that S.S. had Autism. (Id. at 22.) He added that he was available to meet with District officials to help develop an appropriate IEP for S.S. (Id.) On May 9, 2016, Plaintiffs’ counsel provided Gottesfeld’s report to the District and the CSE to consider in developing S.S.’s IEP for the following year. (Id. at 1.) At least two District employees, including the CSE chairperson Carolyn McGuffog and school psychologist Gregory Kemp, believed that Gottesfeld’s report was unreliable. (D’s 56.1 Resp.
70-72.) 3. 2016 CSE Meetings and 2016-17 IEP and School Year On May 17, 2016, the CSE convened to review S.S.’s “functional behavior assessment” (“FBA”), conduct a “program review,” conduct an annual review, and create an IEP for S.S.’s eleventh grade school year. (Ps’ 56.1 Resp. 8; D’s Ex. 3 at 1; D’s Ex. 5 at 1.) At the meeting, the CSE discussed the results of the FBA and “reviewed the entirety of S.S.’s special education program that S.S. had been attending and then discussed S.S.’s progress toward achievement of her IEP goals.” (Ps’ 56.1 Resp. 9.) Also at the meeting, the CSE stated its disagreement with Gottesfeld’s “psychological assessments of S.S.’s social/emotional domain and the recommendation for a residential placement.” (Id. 11.) That said, the CSE asked Gottesfeld — who gave testimony at the meeting — to explain why he thought a more restrictive setting was needed for S.S. (D’s Ex. 5 at 3.) The CSE also heard from the Parents. (See id. at 2-3.) D.S. stated that S.S. did not display at home the social skills discussed in school, and McGuffog responded that S.S. requires generalization training, and that could be provided through “home service.” (Id. at 2.)4 Further, McGuffog “discussed whether there should be more parent training on the IEP and the discussion included that the teachers and school could improve generalizability with more input for…organization at home.” (Id. at 3.) The Parents also expressed concerns about Regents classes, but McGuffog explained that S.S. would receive extra support from a CT and teaching assistant to help her in those classes. (Id. at 2.) The Parents next asked why S.S. had no friends and had issues socializing at school, and McGuffog explained that there were social opportunities in the ISP, as many other students in it had profiles similar to S.S.’s. (See id. at 3.) The Parents requested that the CSE consider a residential placement, (Tr. at 2063:5-12), but the District did not think such a placement was appropriate for S.S., as she was “too high functioning,” so they did not search for or explore any residential placements, (id. at 686:23-687:8; see id. at 2065:2-7 (D.S.’s testimony that CSE “refused to consider…out-of-district residential placement. They did not feel as though [S.S.] had the profile as a student who needed a residential placement.”). McGuffog testified that the CSE discussed the District’s more restrictive program (which is more self-contained than the ISP, but not totally self-contained), but the CSE determined that S.S. was too high-functioning for that program as well. (Id. at 686:13-687:8.) When D.S. stated that she thought S.S. needed a “24-hour scenario,” or 24-hour support, McGuffog stated, “I think we will agree to disagree.” (Ps’ 56.1 74.)5 Following the meeting, the CSE recommended that S.S. remain in the ISP, which consisted of a 15:1 special class for English (modified English) one time daily for 40 minutes; a 15:1 special class for social studies one time daily for 40 minutes (modified social studies); a 12:1+(3:1) special class for ISP study skills one time daily for 40 minutes; a 12:1+(3:1) special class for ISP study skills one time daily on alternate days for 40 minutes; consultant teacher services (direct ISP) for math one time daily for 40 minutes; consultant teacher services (direct and indirect ISP) in science class one time daily for 40 minutes; consultant teacher services (direct and indirect ISP) for vocational skills two times daily for 40 minutes; and consultant teacher skills (direct and indirect ISP) for physical education one time on alternate days for 40 minutes (direct and indirect ISP). (D’s 56.1 13; D’s Ex. 5 at 1, 10.)6 The CSE also recommended that S.S. have “one 30-minute session per week of small group speech-language therapy, one 30-minute session per week of small group social skills training, and one 60-minute session per week of individual family training in home and/or school,” (P’s 56.1 Resp. 14; D’s Ex. 5 at 1), and that S.S. would be part of a “12-month” program and thus take a special 12:1+2 class in July and August daily for six hours, (D’s 56.1 15; D’s Ex. 5 at 1.)7 The IEP also noted that S.S.’s “classification” should be changed to reflect “Autism,” as recommended by Gottesfeld. (D’s Ex. 5 at 3.) On August 18, 2016, Plaintiffs sent the District a letter notifying it of their intention to unilaterally place S.S. at the Riverview School (“Riverview”) in Massachusetts for the 2016-17 school year. (D’s 56.1 17; Ps Ex. N at 2.)8 The CSE then reconvened on August 31, 2016, to discuss the concerns the Parents expressed in their letter. (D’s Ex. 4 at 1.) At this meeting, D.S. explained that she believed the ISP was inappropriate and inadequate for S.S. and that S.S. was not progressing. (Id. at 2.) Specifically, D.S. reiterated her concerns that S.S. would face issues with socialization, but the District’s special education teacher noted that S.S. would be in a peer-mentorship program that would offer her the opportunity to make friendships. (Id.) The teachers noted that they had observed increases in S.S.’s self-confidence and self-advocacy and that she actively participated in class and worked in groups with more typical students. (Id.) When D.S. reiterated her concerns about S.S.’s progress at home not matching her progress at school, the special education teacher noted that S.S. was eligible for “[Office for People with Developmental Disabilities ("OPWDD")] services in the home and community.” (Id.) D.S. also stated that she believed the ISP was “too piecemeal for S.S.” (D’s 56.1 Resp. 80.) After hearing from the Parents, McGuffog stated her belief that a residential program “would be too restrictive,” (D’s Ex. 4 at 2-3), and noted that “S.S. was on the Career Development and Occupational Studies Commencement Credential (CDOS) track, and a candidate for the lab school at the community college and that it would be beneficial for S.S. to remain in the District and build relationships in the community,” (Ps’ 56.1 Resp. 22). After the August 2016 meeting, “the [CSE] agreed to add goals addressing functional math, self-advocacy in the community, self-regulation, and flexibility with regard to changes in routines.” (D’s Ex. 4 at 2.) The CSE also reviewed S.S.’s speech goals and agreed on a new conversational goal involving abstract and figurative language. (Id.) But ultimately, the CSE recommended that S.S. should “continue to participate in the [ISP] at Pleasantville High School” despite the Parents’ disagreement with the recommendation. (Id. at 3.) Following the August 2016 meeting, Plaintiffs insisted that S.S. required a residential placement. (Ps’ 56.1 Resp. 23.) Plaintiffs unilaterally placed S.S. at Riverview for the 2016-17 school year. (Id.) At the end of the 2016-17 school year, Riverview noted that “S.S. had made significant gains toward all of her goals.” (Ps’ 56.1 104; see id.
